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State v. Esser5/23/2003
AFFIRMED
BACKGROUND
After a jury trial, appellant John Robert Esser was found guilty of aggravated driving with an alcohol concentration of 0.10 or greater within two hours of driving in violation of A.R.S. §§ 28-1381(A)(2) and 28-1383(A)(1). The trial court sentenced him to an aggravated, 7.5-year term of imprisonment, enhanced by one historical prior felony conviction. After a separate jury trial, appellant Jose Munoz Vidal was found guilty of four felonies involving alcohol and driving and was sentenced to concurrent, presumptive, ten-year terms of imprisonment, enhanced by two historical prior felony convictions. Each appellant challenges the trial court's denial of his motion to suppress the results of his alcohol breath tests, which had been conducted using an Intoxilyzer 5000 device.
We consolidated the appeals because the cases were consolidated at the trial level for purposes of the motion to suppress the breath test results, because only one set of exhibits was introduced at that proceeding, and because the arguments each appellant raises on appeal about the denial of that motion are virtually identical. Pursuant to Rule 31.26, Ariz. R. Crim. P., 17 A.R.S., we address in this opinion only appellants' issue relating to the breath-testing device. In a separate memorandum decision filed this date, we address two other issues Vidal raises, neither of which are opinion worthy or require reversal. See Ariz. R. Sup. Ct. 111, 17A A.R.S. We affirm the convictions and sentences of both appellants.
DISCUSSION
I. Physiology-based Challenge to Intoxilyzer 5000
Vidal filed a motion to suppress the evidence of his alcohol breath test results, raising statutory and Frye challenges to the admissibility of those results based on the science and respiratory physiology underlying the tests. Esser and five other defendants joined in that motion. After three hearings featuring extensive expert testimony and after reviewing the numerous exhibits, primarily scientific articles, that had been introduced into evidence, the trial court denied the motion as to all defendants. We review the denial of a motion to suppress evidence for a clear abuse of discretion, viewing the evidence presented at the suppression hearing in the light most favorable to upholding the trial court's factual findings and reviewing its legal conclusions de novo. State v. Sanchez, 200 Ariz. 163, , 24 P.3d 610, (App. 2001).
The motion to suppress was based on the conclusions of Dr. Michael P. Hlastala, an expert in pulmonary physiology who testified for the defense about alcohol breath tests, and on a Department of Health Services (DHS) regulation that requires breath specimens to be "alveolar in composition." Ariz. Admin. Code R9-14-403(B)(1). Hlastala explained that the theory of alcohol breath testing originated decades ago when the scientific understanding of pulmonary physiology was primitive and before the development of sophisticated testing devices. In what Hlastala termed the "old paradigm," alcohol was thought to be exchanged between the blood and the breath in the alveoli, the tiny air sacs deep in the lungs, in the same manner as oxygen and carbon dioxide are exchanged between blood and breath in the alveoli. The alcohol was thought to enter the breath in the alveoli in equilibrium with the percentage of alcohol in the blood in the pulmonary capillaries that line the alveoli. The airways, comprising the mouth, trachea, and bronchi, were considered dead air spaces in which no significant alcohol exchange occurred. Under this paradigm, the alcohol concentration of an exhaled breath from a subject with alcohol in his or her blood is expecte
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